Citation Nr: 21074443 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 16-07 069 DATE: December 15, 2021 ORDER Entitlement to total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, on a schedular or extraschedular basis, is denied. FINDING OF FACT The Veteran has not met the criteria for TDIU on a schedular basis at any time since the filing of his claim on June 6, 2013, and the preponderance of the evidence demonstrates that his service-connected disabilities have not prevented him from securing and/or following substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to total disability rating based on TDIU due to service- connected disabilities have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has active service from April 1969 to December 1970. This case is before the Board of Veterans' Appeals (Board) from a March 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Board remanded the TDIU claim to the RO for additional development. In March 2021, the claim was remanded for referral to the Director of Compensation Service (Director) for extraschedular consideration. Finding there has been substantial compliance with the Board's remand directives in accordance with Stegall v. West, 11 Vet. App. 268, 271 (1998), the Board may proceed with appellate review. TDIU The Veteran has contended that his service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. Specifically, he has referenced his 2008 retirement, describing his posttraumatic stress disorder (PTSD) prevented him from making decisions needed to perform his job. He indicated that he did have part-time employment that did not have the same level of responsibility. He asserts he is not able to perform at a job that he is qualified to do (03/03/2015 NOD; 06/06/2013 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability; 05/23/2018 Appellate Brief; 09/29/2021 Appellate Brief). A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one service-connected disability, or two or more with the same etiology or affecting the same body system, the disability rating must be 60 percent or more. Id. If there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disabilities to bring the combined rating to 70 percent or more. Id. It is the policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled, notwithstanding the fact that the assigned schedular ratings do not equal 60 percent for a single disability or 70 percent for a combined disability. 38 C.F.R. § 4.16(b). Thus, if a Veteran fails to meet the rating enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating should be considered if the Veteran is unemployable due to a service-connected disability. 38 C.F.R. § 4.16(b). The Veteran's service-connected disabilities are PTSD, at a disability rating of 50 percent from September 10, 2012; coronary artery disease associated with herbicide exposure, 10 percent from January 17, 2011; tinnitus, 10 percent from September 10, 2012; and hearing loss at a non-compensable rating from September 10, 2012. The Veteran's combined disability rating was 10 percent from January 17, 2011 and 60 percent from September 10, 2012. The Veteran's service-connected disabilities do not yield a combined disability rating sufficient to meet the requirements for a schedular TDIU rating. The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Accordingly, this matter was referred to the Director of Compensation and Pension Services for consideration of entitlement to TDIU on an extraschedular basis. After considering the Veteran's service-connected disabilities, medical evidence, and employment history, the Director issued a decision in May 2021 finding that the preponderance of the evidence failed to show that his service-connected disabilities prohibit him from obtaining or maintaining gainful employment. The Director found that, while the evidence showed that the Veteran may be limited in performing the duties associated with a certain position, it did not show that his ability to work in other suitable positions was entirely compromised by his service-connected disabilities. Further, the Director determined that the evidence of record failed to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities supported an exceptional situation that prevented gainful employment. Although the Director has denied an extraschedular rating in this case, the Board must decide whether the preponderance of the evidence nevertheless shows that the Veteran was unemployable by reason of his or her service-connected disabilities reviewing that decision without deference to the Director and bearing in mind the benefit of the doubt standard. Ray v. Wilkie, 21 Vet. App. 58, 67 (2019). The Veteran is considered unemployable if found that his service-connected disabilities result in his being unable to secure or follow a substantially gainful occupation. 38 C.F.R. § 4.16. In Ray, the Court of Appeals for Veterans Claims (Court) interpreted the phrase "unable to secure and follow a substantially gainful occupation" as having two components, one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person, and the noneconomic component requires more than determining the presence or absence of employment producing income exceeding any particular threshold. The ultimate inquiry on the veteran's ability to secure or follow that type of employment. The Court also provided that to determine whether a veteran can secure and follow a substantially gainful occupation, attention must be given to the veteran's history, education, skill, and training; whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations of lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations. Also, for consideration, is whether the Veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations concerning memory, concentration, ability to adapt to change, handle work-place stress, get along with coworkers, and demonstrate reliability and productivity. While not a checklist, these are potentially relevant factors for consideration if raised by the evidence. In favor of the Veteran's claim, is the Veteran's prescription for medical cannibis for the treatment of his PTSD. Medical evidence suggests the Veteran's symptoms were not responsive to other medications (12/02/2013 Medical Treatment Record - Non-Government Facility, pg. 1). During a September 2013 examination for PTSD, the examiner characterized the Veteran's PTSD symptoms as resulting in occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Further, the examiner acknowledged efforts taken to reduce his PTSD symptoms are likely to cause other negative health consequences over time and are not compatible with work environments. The Veteran's PTSD symptoms and strategies for coping with PTSD symptoms disrupt several areas required for most forms of gainful employment, whether physical or sedentary. Those areas include mild impairment of memory and concentration, moderate to severe impairment of mood and motivation, mild to moderate impairment to social interaction; and mild to moderate impairment to adaptability and stress tolerance (10/01/2013 C&P Exam, pgs. 3 and 5). Weighing against the Veteran's claim are treatment notes of December 2016, related to a non-service-connected disability. These notes make reference to the Veteran's employment, detailing that in addition to his part-time employment, the Veteran worked full time as a property manager for 10 houses and was anxious to get back to work (06/03/2019 CAPRI, pgs. 19, 61, 62). Treatment notes from December 2017 reveal the Veteran was active doing yard work and maintenance on houses (06/03/2019 CAPRI, pg. 12). Notes from November 2018 suggest he was still employed part-time at a university, as a maintenance person and continued to maintain rental property, noting that he "rarely sits" (06/03/2019 CAPRI, pg. 137). The Veteran was afforded a VA examination for his PTSD in August 2019. After a thorough discussion of the Veteran's history, the examiner described the Veteran's occupational and social impairment as including occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner also referenced the Veteran's work with the rental properties (08/15/2019 C&P Exam, pg. 5). Most recently, the Veteran was afforded a VA examination for his PTSD with his symptoms described as causing occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgement, thinking and/or mood. The examiner noted that the Veteran continued to work part time maintaining drawings for the electrical substations. The examiner described the Veteran's symptoms, including difficulty working around people, becoming irritable and angry, problems with authority, and difficulty with concentration. Insomnia and difficulty with decision making was also noted. Certain employment tasks were found to be difficult for him, such as managing the budget that was given to him in his job. He found that to be very difficult because of his memory and concentration issues. He was also dealing with very high electrical voltages and he always feared for the safety of his employees and for himself. He was the one who wrote electrical switching procedures and states that if he was to do something wrong he would be jeopardizing the safety of his employees and that became overwhelming for him (10/11/2019 C&P Exam, pgs. 2, 3, and 6). Although the Veteran's assertions have primarily focused on his PTSD, the Board has also considered whether his heart disability, hearing loss and tinnitus impact his employability. In that regard, the Board has considered the September 2019 VA examination for heart condition. The examiner noted the Veteran's coronary artery disease minimally impacts sedentary work and physical work with exertional expenditure similar to or more than climbing stairs quickly, moderate bicycling, sawing wood, or jogging. Nonetheless, the examiner found the Veteran's heart condition does not impact his ability to work (10/11/2019 C&P Exam, pg. 9). The Veteran was afforded a VA examination for his hearing loss and tinnitus in December 2012 (02/27/2014 CAPRI, pgs. 38 and 40). At that time, the examiner indicated that his hearing loss and tinnitus did not impact his ability to work. More recently in August 2019, a VA examiner described the Veteran's tinnitus as not impacting his ability to work. However, his hearing loss required family to repeat themselves or speak louder than usual, and he struggles to hear when background noise is present. The examiner noted the Veteran's hearing loss can significantly impact his ability to communicate and cause safety concerns, where the Veteran may not be able to hear safety signals and alerts (10/11/2019 C&P Exam, pg. 4 to 6). In addition to the medical evidence of record, the Board has considered the Veteran's March 2021 statement. The Veteran clarified that his formal education was limited to high school, and he did not have any college education (06/29/2020 VA 21-4138 Statement in Support of Claim). The Veteran's statement and work history suggest a specialized knowledge and expertise in working with high voltage distribution. The Board finds this statement, describing specialized knowledge, as well as confirmation that his contract for specialized part-time employment had been renewed annually through July 2021 weigh against his claim. The Veteran also described the reduction of hours was due to the COVID-19 pandemic as opposed to his service-connected disabilities (04/01/2021 VA 21-4138 Statement in Support of Claim). The Veteran has not stated nor does the record suggest he is no longer working with his rental properties as described throughout the record. The Board acknowledges the Veteran's disability picture includes difficulty hearing, PTSD symptoms resulting in deficiencies in most areas to include work, and a heart disability that prevents exertional expenditure similar to or more than climbing stairs quickly, moderate bicycling, sawing wood, or jogging. Nonetheless, the functional impairment associated with his service-connected disabilities do no render him unable to obtain and maintain substantially gainful employment. The Board noted that, while there is functional impairment associated with his disabilities, the impact of his disabilities is adequately contemplated in the rating criteria for each disability. While his formal education is limited to high school, he has specialized knowledge and training in the area of electricity, that is likely marketable and not impacted by his service-connected disabilities as evidenced by annual contract renewal for his part-time position. Additionally, the evidence suggests that the Veteran has specialized experience that, although he is retired, is marketable and desired by his part-time employer. Taken in conjunction with the Veteran's description of his full-time work maintaining 10 rental properties suggests, the Veteran remains able to secure and follow gainful employment despite the functional impairment associated with his service-connected disabilities. The Board has considered the Veteran's belief that his service-connected disabilities have rendered him unable to secure and follow substantially gainful employment. While he is competent to hold this belief, the Board finds the preponderance of the evidence of record to suggest otherwise. Most notably, his experience and training in the field of electrical work, such that after retirement he has consistently been awarded contracts with a university for part-time work; as well as his work maintaining rental properties, suggests that he has abilities and talents that, despite his service-connected disabilities, lend themselves to employability in a variety of fields. Finally, the Veteran has indicated his reduced income from the university has been due to the pandemic, as opposed to his service-connected disabilities. Ultimately, the question is whether the Veteran is capable of performing the physical and mental acts required by employment. Here, the evidence is not sufficient to show that the Veteran has been unable to perform the physical and mental acts required by employment during the appeal period. In fact, despite the functional impairment associated with his disabilities, the most probative evidence shows that the Veteran has worked in a substantially capacity throughout the appeal period. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to a TDIU, to include on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). James Springer Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. A. Myers The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.